DOCTRINE OF STARE DECISIS By  

Author: Syed Shams Abbas, 5th Year, BALLB   

                                                                                                      

INTRODUCTION

Stare Decisis is invariably the doctrine of Precedent. When an issue has been previously brought to the court and a ruling already issued. Those citations are taken into account while citing judgements in the present proceedings. Where the material facts and nature of the case are similar with any case decided by the court in the past, the judgment of that case would be taken into consideration while citing the judgement of the present case. The Court would give the judgement reflecting a precedent and hence would not give a separate and new judgement unless necessary.

PRECEDENTS

In countries that follow the common law system, the judgments of the higher courts are treated as binding on all subordinate courts.This concept of treating judgments of superior courts as binding is called the doctrine of precedent. It is a very important source of law and widely used as well. If law treats a person in particular way, it is only just that other persons in similar position are treated likewise. Only then will there be greater compliance with law.This first principle of law, so to say, should be applicable to the judiciary in order to ensure consistency in interpretation of various laws. The doctrine of precedent was, therefore, evolved in order to maintain consistency and uniformity in law. Apart from these, the doctrine of precedent has the advantages of equality, efficiency and avoiding arbitrariness.

APPLICATION OF THIS DOCTRINE IN INDIA

The doctrine of precedent is expressly incorporated in India by Article 141 of the Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court are binding on all courts within the territory of India. Although there is no express provision, but by convention the decisions of a High Court are binding on all lower courts within the territorial jurisdiction of that High Court. Similarly, a decision of a higher Bench, is binding on the lower Bench.

PERSUASIVE PRECEDENTS

Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which judges must follow whether they approve of it or not.

A persuasive precedent is one which the judges are under no obligation to follow and which they will take into consideration and to which they will attach such weight as it seem to them to deserve.

Authoritative precedent are legal sources of law, while persuasive precedents are merely historical.

FOREIGN JUDGEMENTS:

Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, although not strictly bound to do so. In India Supreme Court may follow judgments of High Courts and High Courts may follow judgments of other High Court.

The English decisions referred to by Supreme Court are of courts of a country from which India has derived its jurisprudence and large part of Indian laws and in which the judgments were delivered by Judges held in high repute. Undoubtedly, none of these decisions are binding upon Supreme Court but they are authorities of high persuasive value to which Courts may legitimately turn for assistance. Whether the rule laid down in any of these cases can be applied by Courts must, however, be judged in the context of Indian own laws and legal procedure and the practical realities of litigation in India. Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241; 1984 Supp. SCC 263.

 

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Disclaimer:

This Article was prepared or accomplished by Syed Shams Abbas in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in

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